Summary
dismissing breach of fiduciary duty claim
Summary of this case from O'Hearn v. Bodyonics, Ltd.Opinion
November 14, 1994
Appeal from the Supreme Court, Nassau County (Wager, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The first cause of action pleaded in the third-party complaint seeks recovery in quasi contract based on the doctrine of unjust enrichment. However, the record indicates that the purported quasi contract arises "out of the same subject matter" (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388) governed by an enforceable written contract between the same parties, dated September 1, 1988. Under these circumstances, the first cause of action in the third-party complaint was properly dismissed (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., supra; Radio Today v. Westwood One, 684 F. Supp. 68, 71-72; Chadirjian v. Kanian, 123 A.D.2d 596; Nixon Gear Mach. Co. v. Nixon Gear, 86 A.D.2d 746). Thompson, J.P., Balletta, Rosenblatt and Florio, JJ., concur.